KB-2025-000232 - [2025] EWHC 1784 (KB)

As I have explained, the Particulars of Claim contain no reference to the “Chris Substack” comment that appears in the chat accompanying the YouTube video. The Claimant, quite rightly, does not suggest that the general words complained of at para 8.1 of the pleading (para 18 above) in themselves would reasonably lead persons acquainted with him to believe that he was the person being referred to, even if account is taken of the introductory averments in the Particulars of Claim (paras 10 – 13 above). Accordingly, it is quite clear that the Claimant’s case on reference cannot get off the ground if he is unable to rely upon the expanded case advanced in his “Claimant’s case for Trial of Preliminary Issues” document based on the “Chris Substack” comment (para 32 above).

Having carefully weighed the competing considerations; I have decided that the Claimant should not be permitted to expand his case on reference in this informal way. I have borne in mind the terms of para 4 of the Master’s Order of 7 March 2025 (para 30 above). It could be said that this may have given the Claimant the impression that it was sufficient for him to set out his case on reference in the document that he was to serve by 4 April 2025. However, whilst, in fairness to the Claimant, I put this point to Mr Hughes during his submissions, Mr Ness did not positively suggest that this was the reason why he had not applied to amend the Particulars of Claim; on this issue, he simply emphasised that he was a litigant in person.

It is well-established that litigants in person are expected to comply with the procedural rules: Barton v Wright Hassall LLP [2018] UKSC 12, [2018] 1 WLR 1119. Moreover, the Particulars of Claim in in this instance were professionally drafted and – unlike the position with the England Athletics emails – all of the relevant material was available to the Claimant and to the pleader at the time when the pleading was prepared. No explanation has been advanced as to why the “Chris Substack” comment was not relied upon in the pleading if, as is now said, it is central to the case on reference.

The importance of the case on reference being clearly pleaded has been stressed by the Courts on multiple occasions, including by Dingemans and Warby LJJ in Dyson (paras 59 and 62 above); and by Collins Rice J in Bridgen (para 65 above). At the very least, the Claimant was put on notice by the Defendant’s Skeleton Argument of 27 June 2025 that this pleading point was being taken against him, but he did not apply to amend his case on reference nor supply a proposed Amended Particulars of Claim.

Further, if and insofar as the Claimant wishes to rely upon a reference innuendo as the means of establishing that the words complained of referred to him, this a separate and distinct cause of action to the pleaded case based on the natural and ordinary meaning of the words complained of (para 66 above). Accordingly, in this respect the Claimant is seeking to advance a case that is not only a substantial amplification of the pleaded claim, but a new claim altogether.

The “Claimant’s case for Trial of Preliminary Issues” is not an effective substitute for a properly pleaded case. It is a more informal document. I accept that, in a general sense, it gave the Defendant some notice of the point being raised: the document includes a screenshot of the relevant part of the live chat, it emphasises the “Chris Substack” comment, its proximity in time to the words complained of and it makes reference to the Claimant’s Substack blog of 31 January 2024, which is appended (without indicating which parts of the blog are relied upon for these purposes). The Claimant goes on to assert that there was no ambiguity as to who was being referred to in the video “either by the live audience or to any individual subsequently viewing the broadcast”. However, the Claimant does not indicate: (a) whether he relies upon the natural and ordinary meaning of the words used or whether he is relying upon a reference innuendo or both (paras 59 and 65 above); (b) if he relies on the former, what are his particular attributes that he alleges the hypothetical reasonable viewer who is acquainted with him would know; or (c) if he relies on the latter, the special circumstances that he says were known to some or who those people are.

These omissions are important. In order to evaluate the merits of the natural and ordinary meaning route, the Court and the Defendant need to understand the specific attributes that are relied upon as within the knowledge of the reasonable viewer; the Court then needs to know from the Defendant the extent to which these are in dispute; and, in turn, the Court will then be in a position to make an assessment, including making findings of fact on those matters, after hearing relevant evidence first if appropriate (paras 62 – 63 above). By way of example, as I have noted earlier, there appears to be a dispute between the parties as to the title of the Claimant’s blog (paras 11 and 14 above). I heard no evidence on this point (although it appears from the link to the audio of the 31 January 2024 blog (at page 117 of the bundle) that the Defendant is correct in saying that the blog is called “Outside the Cave”). Moreover, although the Claimant asserted in his oral submissions that his blog is very well known, there is no indication in his Claimant’s Case document as to, for example, the number of subscribers that it had at the material time and/or to the level of engagement with it on social media; the only matter he referred to was the outcome of a Google search undertaken over a year later.

Furthermore, there is no clearly articulated case based on a reference innuendo in the “Claimant’s case for Trial of Preliminary Issues”, if that is the case that he wants to advance; see further at para 100 below.

Accordingly, the case on reference fails; the Claimant is not able to show that the words complained of referred to him.